Smart Parking Fine - ASDA store, Bootle, Merseyside.

[Mac0151]

Hi, I wonder if anybody could give me some advice, in regards to a PCN that I received from Smart Parking Ltd, dated 14/04/2015. The date of the "offence" was 10/04/2015 and it was due to having overstayed the free 2.5 hour period, at ASDA stores, Bootle. The PCN included a photograph of my entry into the car park (12:28:49) and exit (15:35:38). I appealed against the PCN on the grounds that I was unaware of the new regulations for the car park; as a regular customer to the store, this had only recently been introduced. Please find a copy of my letter of appeal and notice from Smart Parking Ltd advising that the PCN was to be upheld. The verification code required to appeal to the Independent Appeals Service is: xxxxxxxxxxxxx

I have included the photograph of the notice near the disabled bay where we parked. There are notices in regards to restrictions near the normal parking bays, but none other than the one included near the disabled bay. I also sent a scan of the disabled badge displayed on the date in question.

Any advice would be most appreciated.

Many thanks.

[Kati]

Re: Smart Parking Fine - ASDA store, Bootle, Merseyside.

Hi Mac0151 ... I've edited your post and attachments to remove names and other identifying bits
I'd suggest you now appeal to popla using the code they provided :nod:

[mystery1]

Re: Smart Parking Fine - ASDA store, Bootle, Merseyside.

The notices and other signage are the important details.

Have you spoken to Asda ?

M1

[Mac0151]

Re: Smart Parking Fine - ASDA store, Bootle, Merseyside.

Hi mystery1, thanks for getting back to me. We spoke to customer services on the 14th (when we revisited the store to see if we could see any signs) and they said to advise Smart Parking Ltd., of our circumstances and felt that the PCN would be dropped. When we revisited the store. There was a sign near the Asda sign by the entrance, which neither me, nor my passenger had noticed and there were signs at the end of each standard parking bay, but we didn't see them. The only sign that we were aware of was the one pictured. That sign made absolutely no reference to there being a time limit, only that there would be a fine for parking there without a blue badge displayed. We truly didn't have a clue we'd transgressed any conditions until we received the PCN. Do you think there is any point in pursuing this with Popla?

Once again, thanks for your help. Most appreciated.

[mystery1]

Re: Smart Parking Fine - ASDA store, Bootle, Merseyside.

You might not have seen them but what they say may help

You haven't posted the PCN either

M1

[Mac0151]

Re: Smart Parking Fine - ASDA store, Bootle, Merseyside.

Hi M1, I'll post the PCN up later this afternoon. I took photographs of the displayed signs on the 14/04/2015. We didn't see the sign by the entrance to the store and not knowing that restrictions had been introduced, we had no cause to go looking for the signs on the main parking bay. The only sign we saw on the 10/04/2015, was the one stating we had to have a blue badge displayed in the disabled bay (which we did) and that made no mention of their being a time limit. I wouldn't mind, but ordinarily, we wouldn't have stayed so long, but we decided to have lunch at the store. Probably going to be the most expensive lunch we've ever had, I guess.

Cheers for your help and advice mate.

[Mac0151]

Re: Smart Parking Fine - ASDA store, Bootle, Merseyside.

Thanks Kati, sorry about that. Still finding my way around.

[Mac0151]

Re: Smart Parking Fine - ASDA store, Bootle, Merseyside.

Hi M1, these are the photographs that we took on the 14th, after receiving the PCN (also included). Thanks.

[mystery1]

Re: Smart Parking Fine - ASDA store, Bootle, Merseyside.

Off out but back tonight.

M1

[Mac0151]

Re: Smart Parking Fine - ASDA store, Bootle, Merseyside.

No worries mate, cheers.

[mystery1]

Re: Smart Parking Fine - ASDA store, Bootle, Merseyside.

Got delayed. Hope to do it after some sleep.

M1

[Mac0151]

Re: Smart Parking Fine - ASDA store, Bootle, Merseyside.

No probs mate, really appreciate you taking the time to help.

[mystery1]

Re: Smart Parking Fine - ASDA store, Bootle, Merseyside.

I wish to appeal this parking charge on the following grounds.




1. The charges are penalties and not a contractual charge, breach of contract or trespass. They are not a genuine pre estimate of loss either.




2. In order to form a contract the signs need to be clear so that they must be seen by an average person. They were not. There was no breach of contract.




3. Smart Parking do not hold sufficient interest in the land to offer a motorist a contract to park. They have no locus standi.




4. Smart Parking have failed to adhere to the BPA code of practice.




5. Unreliable, unsynchronised and non-compliant ANPR system.


6. Keeper liability.




1.The charges are penalties.




The charges are represented as an overstay. The driver on the day had difficulty in getting in and out of the car park due to traffic. According to the BPA code "If the parking charge that the driver is being asked to pay is for a act of trespass, this charge must be proportionate and commercially justifiable. We would not expect this amount to be more than £100. If the charge is more than this, operators must be able to justify the amount in advance"




£70 is clearly not proportionate to a stay in a car park in which the vehicle was allowed to park for 2.5 hours with longer available. Neither is it commercially justified because it would make no sense and in any event in was only ruled so in Parking Eye v Beavis in a car park where the operator paid £1000 per week, a case which in any event is being appealed to the supreme court. It is also noted that the judge in Beavis did rule it was a penalty although in that particular car park it was commercially justified due to the £1000 per week paid by the operator. The longer a driver stays in the various shops then the more profit is made. £70 is clearly a penalty. The £70 is not a genuine pre estimate of loss and is extravagant and unconscionable. It is a penalty. It is not an attempt to claim liquidated damages which should be a genuine pre estimate of loss. £70 cannot be so as the figures quoted include business costs.




I require Smart Parking to submit a full breakdown of how these losses are calculated in this particular car park and for this particular ‘contravention’. Smart Parking cannot lawfully include their operational day to day running costs (e.g. provision of signs, ANPR and parking enforcement) in any ‘loss’ claimed. Not only are those costs tax deductible, but were no breaches to occur in that car park, the cost of parking 'enforcement ' would still remain the same.




According to the Unfair Terms in Consumer Contract Regulations, parking charges for breach on private land must not exceed the cost to the landowner during the time the motorist is parked there. As the landowner allows free parking for shoppers and several hundred pounds were spent then there is no loss. The Office of Fair Trading has stated that ''a ‘parking charge’ is not automatically recoverable simply because it is stated to be a parking charge, as it cannot be used to state a loss where none exists.''




When one looks at the sign one sees that blue badge holders are not allowed to park in disabled bays without displaying a badge and are charged £70 if they do then it becomes even clearer that £70 is to deter people from misusing disabled bays and that £70 is an arbitrary amount charged for all transgressions and as such is an unenforceable penalty. The vehicle had a valid blue badge.




2. Unclear and non-compliant signage, forming no contract with drivers.

The driver did not see the signage and thus no contract was formed.


I require signage evidence in the form of a site map and dated photos of the signs at the time of the parking event. I would contend that the signs (wording, position and clarity) fail to properly inform the driver of the terms and any consequences for breach, as in the case of Excel Parking Services Ltd v Martin Cutts, 2011. As such, the signs were not so prominent that they 'must' have been seen by the driver - who would never have agreed to pay £70 in a carpark where they could have paid nothing and had they seen the signs they would have asked Asda for more time. It was not a genuine attempt to contract for unlimited parking in return for £70.




As the PCN had no VAT content to it, it cannot be for a service. It must therefore be a penalty.








3.. Contract with landowner - no locus standi




Smart Parking do not own nor have any interest or assignment of title of the land in question. As such, I do not believe that Smart Parking has the necessary legal capacity to enter into a contract with a driver of a vehicle parking in the car park, or indeed to allege a breach of contract. Accordingly, I require sight of a full copy of the actual contemporaneous, signed and dated site agreement/contract with the landowner (and not just a signed slip of paper saying that it exists). Some parking companies have provided “witness statements” instead of the relevant contract. There is no proof whatsoever that the alleged signatory has ever seen the relevant contract, or, indeed is even an employee of the landowner. Nor would a witness statement show whether there is a payment made from either party within the agreement/contract which would affect any 'loss' calculations. Nor would it show whether the contract includes the necessary authority, required by the BPA CoP, to specifically allow Parking eye to pursue these charges in their own name as creditor in the Courts, and to grant them the standing/assignment of title to make contracts with drivers.








In POPLA case reference 1771073004, POPLA ruled that a witness statement was 'not valid evidence'. This witness statement concerned evidence which could have been produced but was not. So if the operator produces a witness statement mentioning the contract, but does not produce the actual un-redacted contract document, then POPLA should be consistent and rule any such statement invalid.








So I require the unredacted contract for all these stated reasons as I contend the Operator's authority is limited to that of a mere parking agent. I believe it is merely a standard business agreement between Smart Parking and their client, which is true of any such business model. This cannot impact upon, nor create a contract with, any driver, as was found in case no. 3JD00517 ParkingEye v Clarke 19th December 2013 (Transcript linked): http://nebula.wsimg.com/0ce354ec6697...essKeyId=4CB8F 2392A09CF228A46&disposition=0&alloworigin=1






I refer the Adjudicator to the recent Appeal Court decision in the case of Vehicle Control Services (VCS) v HMRC ( EWCA Civ 186 [2013]): The principal issue in this case was to determine the actual nature of Private Parking Charges.








It was stated that, "If those charges are consideration for a supply of goods or services, they will be subject to VAT. If, on the other hand, they are damages they will not be."








The ruling of the Court stated, "I would hold, therefore, that the monies that VCS collected from motorists by enforcement of parking charges were not consideration moving from the landowner in return for the supply of parking services."








In other words, they are not, as the Operator asserts, a contractual term. If they were a contractual term, the Operator would have to provide a VAT invoice, to provide a means of payment at the point of supply, and to account to HMRC for the VAT element of the charge. The Appellant asserts that these requirements have not been met. It must therefore be concluded that the Operator's charges are in fact damages, or penalties, for which the Operator must demonstrate his actual, or pre-estimated losses, as set out above.








4. Failure to adhere to the BPA code of practice.




The signs do not meet the minimum requirements in part 18. They were not clear and intelligible as required.




The BPA Code of Practice states under appendix B, entrance signage:








“The sign must be readable from far enough away so that drivers can take in all the essential text without needing to look more than 10 degrees away from the road ahead.”




For a contract to be formed, one of the many considerations is that there must be adequate signage on entering the car park and throughout the car park. I contend that there is not. Upon returning to the car park after receiving this unjustified 'charge notice' to check the alleged terms at a later date, I had to get out of my car to even read the larger font on the signs, and the smaller font was only readable when standing next to a sign. They were also very brightly coloured but too busy, confusing and unclear. Everything except the 'welcome' heading is too unreadable to be compliant (photo attached).




When with reference to the BCP Code of Practice, it actually states:




"There must be enough colour contrast between the text and its background, each of which should be a single solid colour. The best way to achieve this is to have black text on a white background, or white text on a black background. Combinations such as blue on yellow are not easy to read and may cause problems for drivers with impaired colour vision"

There were no entry signs at the time or at least they were no obvious enough to be seen.




5. ANPR ACCURACY




This Operator is obliged to ensure their ANPR equipment is maintained as described in paragraph 21.3 of the British Parking Association's Approved Operator Scheme Code of Practice. I require the Operator to present records as to the dates and times of when the cameras at this car park were checked, adjusted,calibrated, synchronised with the timer which stamps the photos and generally maintained to ensure the accuracy of the dates and times of any ANPR images.This is important because the entirety of the charge is founded on two images purporting to show my vehicle entering and exiting at specific times. It is vital that this Operator must produce evidence in response to these points and explain to POPLA how their system differs (if at all) from the flawed ANPR system which was wholly responsible for the court loss by the Operator inParkingEye v Fox-Jones on 8 Nov 2013. That case was dismissed when the judge said the evidence form the Operator was 'fundamentally flawed' as the synchronisation of the camera pictures with the timer had been called into question and the operator could not rebut the point.








So, in addition to showing their maintenance records, I require the Operator in this case to show evidence to rebut this point: I suggest that in the case of my vehicle being in this car park, a local camera took the image but a remote server added the time stamp. As the two are disconnected by the internet and do not have a common "time synchronisation system", there is no proof that the time stamp added is actually the exact time of the image. The operator appears to use WIFI which introduces a delay through buffering, so "live" is not really "live". Hence without a synchronised time stamp there is no evidence that the image is ever time stamped with an accurate time. Therefore I contend that this ANPR "evidence" from this Operator in this car park is just as unreliable as the ParkingEye system and I put this Operator to strict proof to the contrary.




6. Keeper liability.


The protection of freedoms act 2012 schedule 4 allows the opportunity for parking companies liable for the actions of the driver but only if full compliance is achieved. In the case of an ANPR situation compliance with section 9 is required.


Right to claim unpaid parking charges from keeper of vehicle




4(1)The creditor has the right to recover any unpaid parking charges from the keeper of the vehicle.
(2)The right under this paragraph applies only if—
(a)the conditions specified in paragraphs 5, 6, 11 and 12 (so far as applicable) are met ....


6(1)The second condition is that the creditor (or a person acting for or on behalf of the creditor)—




(b)has given a notice to keeper in accordance with paragraph 9.




9(1)A notice which is to be relied on as a notice to keeper for the purposes of paragraph 6(1)(b) is given in accordance with this paragraph if the following requirements are met.
(2)The notice must—
(a)specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates;
(b)inform the keeper that the driver is required to pay parking charges in respect of the specified period of parking and that the parking charges have not been paid in full;
(c)describe the parking charges due from the driver as at the end of that period, the circumstances in which the requirement to pay them arose (including the means by which the requirement was brought to the attention of drivers) and the other facts that made them payable;
(d)specify the total amount of those parking charges that are unpaid, as at a time which is—
(i)specified in the notice; and
(ii)no later than the end of the day before the day on which the notice is either sent by post or, as the case may be, handed to or left at a current address for service for the keeper (see sub-paragraph (4));
(e)state that the creditor does not know both the name of the driver and a current address for service for the driver and invite the keeper—
(i)to pay the unpaid parking charges; or
(ii)if the keeper was not the driver of the vehicle, to notify the creditor of the name of the driver and a current address for service for the driver and to pass the notice on to the driver;
(f)warn the keeper that if, after the period of 28 days beginning with the day after that on which the notice is given—
(i)the amount of the unpaid parking charges specified under paragraph (d) has not been paid in full, and
(ii)the creditor does not know both the name of the driver and a current address for service for the driver,the creditor will (if all the applicable conditions under this Schedule are met) have the right to recover from the keeper so much of that amount as remains unpaid;
(g)inform the keeper of any discount offered for prompt payment and the arrangements for the resolution of disputes or complaints that are available;
(h)identify the creditor and specify how and to whom payment or notification to the creditor may be made;
(i)specify the date on which the notice is sent (where it is sent by post) or given (in any other case).
(3)The notice must relate only to a single period of parking specified under sub-paragraph (2)(a) (but this does not prevent the giving of separate notices which each specify different parts of a single period of parking).
(4)The notice must be given by—
(a)handing it to the keeper, or leaving it at a current address for service for the keeper, within the relevant period; or
(b)sending it by post to a current address for service for the keeper so that it is delivered to that address within the relevant period.
(5)The relevant period for the purposes of sub-paragraph (4) is the period of 14 days beginning with the day after that on which the specified period of parking ended.
(6)A notice sent by post is to be presumed, unless the contrary is proved, to have been delivered (and so “given” for the purposes of sub-paragraph (4)) on the second working day after the day on which it is posted; and for this purpose “working day” means any day other than a Saturday, Sunday or a public holiday in England and Wales.
(7)When the notice is given it must be accompanied by any evidence prescribed under paragraph 10.
(8)In sub-paragraph (2)(g) the reference to arrangements for the resolution of disputes or complaints includes—
(a)any procedures offered by the creditor for dealing informally with representations by the keeper about the notice or any matter contained in it; and
(b)any arrangements under which disputes or complaints (however described) may be referred by the keeper to independent adjudication or arbitration.












The notice to keeper does not specify a period of parking. The notice merely indicates a time of entry in to the car park and an exit time from the car park. The BPA code of practice makes reference to the fact that entry is not parking and dictates a grace period must be allowed partly for this very reason. As the keeper is not the person who was driving the keeper cannot know what the period of parking is and the legislation dictates it must be specified, presumably for that very reason. In Woodchester v Swayne & Co [1998] EWCA Civ 1209 (14 July 1998) it was held that the specified information required to be provided by legislation should indeed be accurate and that the failure made the relevant notice invalid. It was also the deciding factor in Parking Eye v Mrs X Case No: 3JD08399 IN THE ALTRINCHAM COUNTY COURT.
http://nebula.wsimg.com/c289944f81b4...&alloworigin=1


Sections E & F has not been complied with at all. Other sections are not totally complied with either. The keeper is not invited to pay.






M1

[Mac0151]

Re: Smart Parking Fine - ASDA store, Bootle, Merseyside.

Hi M1, I'm sorry for the delay in getting back to you. Thank you so much for taking the time to do this. We plan to put in an appeal to POPLA and we'll let you know how we get on. Once again, thank you so much for all your help.

[Mac0151]

Re: Smart Parking Fine - ASDA store, Bootle, Merseyside.

Hi M1, just another quick query. Do you think we should we pay the fine (at the reduced rate) prior to the POPLA appeal ? Thanks.